Casino v. "'mr. R. Rohl' Or John Doe' Owner/Administrator Home

EILEEN CASINO, Plaintiff, v. "'MR. R. ROHL' or 'JOHN DOE' Owner/Administrator of Woodhaven Nursing Home," Defendant.

14-CV-2175 (SJF)(GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

October 23, 2014

ORDER

FEUERSTEIN, District Judge:

On April 3, 2014, pro se plaintiff Eileen Casino ("plaintiff")¹ filed a fourth in forma pauperis complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") challenging the quality of care Donato J. Casino allegedly received at, inter alia, Woodhaven Nursing Home ("Woodhaven")², accompanied by an application to proceed in forma pauperis. On May 30, 2014, plaintiff filed an amended complaint pursuant to Section 1983 against "'MR. R. ROHL' or 'JOHN DOE' Owner/Administrator of Woodhaven Nursing Home" ("defendant").

Since plaintiff's financial status, as set forth in her declaration in support of her application to proceed in forma pauperis, qualifies her to commence this action without prepayment of the filing fees, see 28 U.S.C. § 1915(a)(1), her application to proceed in forma pauperis is granted. However, for the reasons set forth below, the amended complaint is sua sponte dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for relief.

I. Background

A. Prior Litigation

1. The First Casino Action

On September 11, 2013, plaintiff filed in this Court, inter alia, a complaint pursuant to Section 1983 against Brian Cassidy ("Cassidy") and "Mr, Rohl, as owner/admin,"³ among others, alleging violations of Mr. Casino's civil rights relating to his treatment and care in an unidentified nursing home and to court proceedings in which Cassidy acted as his law guardian, which was assigned docket number 13-cv-5095 ("the first action"). By Order dated November 8, 2013, inter alia: (1) plaintiff's claims in the first action were sua sponte dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) for lack of standing and failure to state a claim for relief; and (2) Mr. Casino's claims in the first action were sua sponte dismissed without prejudice on the basis that plaintiff, who is not an attorney, could not assert pro se claims on his behalf.

2. The Second Complaint

On October 28, 2013, plaintiff filed another complaint in this court pursuant to Section 1983 against "Stonybrook [sic] University Medical Center" ("Stony Brook"), Cassidy and Woodhaven alleging, inter alia, that those defendants were "not always acting in the best interest of [Mr.] Casino or his family or according to all our wishes" and "unfair competition for family time with my husband" (Compl. under docket number 13-6357 at 1-2), which was assigneddocket number 13-CV-6357 ("the second action"). By Order dated January 27, 2014, inter alia: (1) plaintiffs claims against Stony Brook were sua sponte dismissed for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure; (2) plaintiff's Section 1983 claims against Woodhaven and Cassidy were sua sponte dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for relief; and any state law claims were dismissed without prejudice pursuant to 28 U.S.C. § 1367.

3. The Third Complaint

On or about January 22, 2014, plaintiff filed a third complaint ("the third action") pursuant to Section 1983 on behalf of herself and Mr. Casino against Stony Brook, Cassidy, Woodmere Nursing Home ("Woodmere") and the New York State Mental Health Court ("the State Court") alleging, inter alia, that those defendants' actions concerning Mr. Casino's care were "against [the] best interest[s] & wish[es] of p[atien]t & [his] family resulting in setbacks of health at Stonybrook [sic] Hospital" (Compl. under docket number 14-CV-00629 at ¶ III), which was assigned docket number 14-CV-00629 ("the third action"). By Order dated April 10, 2014, inter alia: (1) plaintiff's claims against Stony Brook and the State Court were sua sponte dismissed pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction; (2) plaintiff's Section 1983 claims against Woodmere and Cassidy were sua sponte dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for relief; (3) any state law claims were dismissed without prejudice pursuant to 28 U.S.C. § 1367; and (4) Mr. Casino's claims were sua sponte dismissed without prejudice because plaintiff, who is not an attorney, could not assert pro se claims on his behalf.

B. The Instant Complaint⁴

Since the original complaint filed by plaintiff was not signed, the Court's pro se office sent plaintiff a Notice of Deficiency ("Notice") on May 14, 2014, informing her that she must file a signed complaint within fourteen (14) days from the date of the Notice in order to proceed with this case. [See Docket Entry No. 5]. On May 30, 2014, plaintiff filed a signed amended complaint against defendant alleging that the "right to life[,] liberty[,] happiness guarantee [sic] in Constitution of USA was denied [and] there is now wrongful death of Donato Casino caused by criminal negligence [and] human rights abuses." (Amended Complaint ["Am. Compl."], ¶ 11(B)) (case converted to lowercase).

The following is plaintiff's statement of her claims against defendant in the amended complaint, which she alleges occurred "[b]etween June of 2013-Sept 10 of 2013," (Am. Compl., ¶ III (A)):

"At all visits from myself I found Dan in a dark room, no company, no radio or tv turned on, on his back, no care given yet that day incl. no diaper change or feeding or fluid/ice [indecipherable] Approx. 2 visits or more per [week]. Approx. 2 [weeks] per [month]. Actually Dan on their premises. . . .

[] No ability or available call bell[.]

[] 'Sterile['] dressing table filthy at each visit[.]

[] 'Sterile' dressing to be used left on table unattended, open to dirty air for who knows how long w/ointments on them open to air[.]

5 different hosp. stays - only they sent him later rather than in timely fashion. Also - last hosp. stay at Stony Brook Hosp. was 5 months from Sept- 2013 to end of Jan/Feb '14[,] which consisted of health crisis after health crisis requiring heroic means to save Dan's life during that 5 mos. After [transfer] to new home in Nassau Co. Dan was never the same - responsive, but min. interactive - 1 more stay at Franklin Hosp. (2-3 wk) back to Woodmere - then final stay at S. Nassau Hosp. Dan did not get his last wish for me to be by his side in his last hour because of location. I arr[ived] at Nassau after (Cassidy)(law guardian) approved a DNR.

At Nassau Hosp. - 3 handwritten pps. of meds scheduled on 1 shift shown to me[.] Feeding at 30 ml. (only 1/3 what they [brought] him up to at Franklin (90 ml) still insufficient for his frame[.)]

I saw 5 dark spots (large) on Doplar in his stomach - they were ulcers, yet hosp. claims they could not determine cause of bleeding or infection. Nassau continued use of Tylenol, though Franklin had said they would not use it - contraindicated by a condition Dan had.

Woodmere had Dan off [of] ventilator, IV P/C Line, feeding & hydration at 2 visits and failed [indecipherable] to hosp[.]"

(Am. Compl. ¶¶ III-IV) (emphasis in original; case converted).

Plaintiff seeks, inter alia, compensatory damages in the amount of "½ a million dollars." (Am. Compl. ¶ V) (case converted).

II. Discussion

A. Standard of Review

Under the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint if it "(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."

It is axiomatic that district courts are required to read pro se complaints liberally, Ericksonv. Parous, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)); Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013), and to construe them "to raise the strongest arguments that they suggest." Gerstenbluth v. Credit Suisse Securities (USA) LLC, 728 F.3d 139, 142-43 (2d Cir. 2013) (quotations and citations omitted). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations in the complaint." Harrington v. Cnty. of Suffolk, 607 F.3d 31, 33 (2d Cir. 2010); see also Ashcroft v. Iqbal 556 U.S. 662, 678-79, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Nevertheless, a complaint must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. The plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S. Ct. 1937; see also In re Amaranth Natural Gas Commodities Litig., 730 F.3d 170, 180 (2d Cir. 2013).

"A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955); see also Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013)(accord). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in thecomplaint are true (even if doubtful in fact)." Twombly, 550 U.S. 544, 127 S. Ct. at 1959.

B. Section 1983

Section 1983 of Tile 42 of the United...